ISLAMABAD: The Federal Constitutional Court has ruled that misconduct, abusive behaviour, a hostile workplace or other improper conduct will not by itself be treated as actionable harassment under the Protection Against Harassment of Women at the Workplace Act, 2010 unless the conduct has a sexual nature.
A three-member bench headed by Chief Justice Amin ud Din Khan and comprising Justice Ali Baqar Najafi and Justice Syed Arshad Hussain Shah issued the ruling in petitions filed by Usman Shahid and Aqeel Abbas against Nadia Sarwar and others.
The matter arose from a complaint lodged by Nadia Sarwar, an employee of the National Bank of Pakistan, against the two petitioners. She had alleged sexual harassment, intimidation and creation of a hostile work environment. According to the record, she had approached the bank authorities before filing a complaint with the Federal Ombudsperson in 2013.
The Federal Ombudsperson had imposed the major penalty of compulsory retirement on the petitioners. They later approached the President of Pakistan, who changed the punishment to censure.
The Islamabad High Court subsequently set aside the President’s order and restored the decision of the Ombudsperson. The two employees then challenged the High Court judgment before the Federal Constitutional Court.
In its detailed ruling, the court examined Section 2(h) of the 2010 Act and held that the definition of harassment in the law was exhaustive. It said the conduct complained of must be sexual in nature to fall within the scope of the Act.
The court explained that sexual harassment could take verbal, non-verbal or physical forms, but the required sexual element must be present.
The bench drew a distinction between general harassment and harassment covered by the 2010 law. It held that conduct which may generally be described as harassment, including serious or improper workplace behaviour, was not actionable under the Act merely because it was harmful, offensive or unacceptable.
According to the judgment, such conduct may instead fall within departmental disciplinary proceedings where the required sexual element is absent.
The court also clarified that the law protects both working women and working men, but only against workplace harassment having a sexual dimension. It observed that the special law could not be applied as a general law for every form of workplace misconduct.
The judgment set a higher evidentiary standard for sexual harassment complaints, holding that there must be impartial and credible material capable of meeting a test of reasonableness, supported by convincing and independent evidence.
The court cautioned that mixing serious allegations with unrelated administrative complaints could weaken the clarity and effectiveness of the main charges.
The bench also disagreed with earlier Supreme Court interpretations in Nadia Naz, Raja Tanveer Safdar and Muhammad Din to the extent that those cases treated non-sexual workplace harassment as actionable under the 2010 Act.
The Federal Constitutional Court said its interpretation was based on the wording of Section 2(h) and Article 189 of the Constitution.
The judgment also placed limits on High Court interference with an order passed by the President on a representation under Section 9 of the Act.
The court held that such an order should not be routinely disturbed through writ jurisdiction. A High Court may intervene where there is a serious error, such as non-reading or misreading of evidence, wrong application of law, excess or abuse of jurisdiction, or violation of natural justice.
However, the court said a High Court could not simply replace findings of fact with its own view.
The Federal Constitutional Court ultimately converted the petitions into appeals and allowed them. It set aside the Islamabad High Court judgment, leaving the President’s order in place.
The ruling also explained that the 2010 law provides for inquiry committees within organisations, proceedings before the Ombudsperson and a right to challenge an Ombudsperson’s decision before the President or Governor.
The court’s latest interpretation means that the specific harassment jurisdiction under the law depends on the presence of the sexual element defined in Section 2(h).
